Child Disability Payment decision making guide
Habitual residence
Habitual residence is a stricter test than ordinary residence. An individual can only have one habitual residence at a time.
To be considered habitually resident a person must satisfy two conditions:
- that they have lived in the place in question for an ‘appreciable’ period. This is usually for a minimum of 1-3 months (Nessa v Chief Adjudication Officer [1999] UKHL 41; see also CIS 1304/97 & CJSA 5394/98);
- they have a ‘settled intention’ to continue living there for a reasonable although not necessarily permanent period
The stronger the intention to settle in Scotland, the shorter the period required to establish habitual residence is likely to be. People who:
- were formerly habitually resident in Scotland, and
- are returning to Scotland can be considered habitually resident from the day they arrive back in the country. They do not have to have lived in Scotland for an appreciable period
Applicants for CDP who are either:
- UK or third-country nationals,
- EA or Swiss nationals not in the protected cohort must be habitually resident in the Common Travel Area (CTA). See Personal Scope of the EU Coordination Rules below. Different rules may apply to a family member of an EEA or Swiss national. See residence criteria for the ‘protected cohort’, below
Applicants for CDP who are residing outside the UK and are in the protected cohort must be habitually resident in one of the following:
- Switzerland
- an EEA state
- Gibraltar
The Common Travel Area (CTA) comprises the following: • The United Kingdom (England, Scotland, Wales and Northern Ireland) • The Republic of Ireland • The Isle of Man • The Channel Islands (Jersey and Guernsey).
Most applicants for CDP will only have one address in Scotland. Where this is the case, that individual will be both:
- ordinarily resident in Scotland
- habitually resident in the Common Travel Area, as Scotland is in the CTA
Where a person lives between two addresses, one of which is outside Scotland, their other address must be in a CTA country.
Whether and when habitual residence is established is a question of fact to be decided on the circumstances of each case. The following factors have been described as relevant considerations by the courts in objectively assessing an applicant’s ‘settled intention’:
- making arrangements before arriving in Scotland such as accommodation, registration with local authorities, etc.
- arranging to bring family members to Scotland
- any existing and durable ties to Scotland
- bringing substantial possessions with you to Scotland. This list is not exhaustive
Certain groups are exempt from the habitual residence test, such as individuals with refugee status. In certain circumstances, individuals arriving in the UK from Afghanistan do not need to meet the habitual residence test, including people who have been awarded leave to enter or remain in the UK granted under the immigration rules under either (i) the Afghan Relocations and Assistance Policy (“ARAP”), (ii) the scheme ARAP replaced which was for locally employed staff in Afghanistan (sometimes known as the ‘ex-gratia’ scheme), (iii) or the Afghan Citizens Resettlement Scheme (“ACRS”). Individuals who are dependents of the individuals mentioned here, because they have been granted discretionary leave outside the immigration rules, are also exempted from having to meet the habitual residence test (The Social Security (Residence Requirements) (Afghanistan) (Scotland) Regulations 2021). “The Afghan Citizens Resettlement Scheme” was announced by the United Kingdom Government on 18 August 2021, More details can be found here: https://www.gov.uk/guidance/af...
Ben lives with his mother from Monday to Friday in Carlisle where he attends school. He lives in Dumfries with his father at weekends. Ben is ordinarily resident in both England and Scotland. As both England and Scotland are in the Common Travel Area, Ben’s habitual residence is in the CTA. Ben is eligible for CDP.